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Sams v. Berryhill

United States District Court, N.D. Florida, Gainesville Division

September 8, 2017

PHILLIP A. SAMS III, Plaintiff,
v.
NANCY A. BERRYHILL, Acting Commissioner of the Social Security Administration, Defendant.

          MEMORANDUM OPINION AND ORDER

          CHARLES A. STAMPELOS, UNITED STATES MAGISTRATE JUDGE

         This is a Social Security case referred to the undersigned upon consent of the parties, ECF No. 8, by District Judge Mark E. Walker, ECF No. 9, and before the Court pursuant to 42 U.S.C. § 405(g) for review of the final determination of the Acting Commissioner (Commissioner) of the Social Security Administration (SSA) denying Plaintiff's application for a period of disability and Disability Income Benefits (DIB) filed pursuant to Title II of the Act. For the reasons set forth herein, the decision of the Commissioner is reversed and remanded.

         I. Procedural History

         On August 14, 2013, Plaintiff, Phillip A. Sams III, filed an application for DIB, alleging disability beginning August 14, 2013, based on a stroke in 2012; depression; hyperthyroid; heart disease; anxiety; migraines and bad headaches; blurred vision; back injury; fainting spells/dizziness; chest pains; and weakness on left side. Tr. 33, 171-72, 186-87, 195.[1] Plaintiff meets the insured status requirements for DIB through March 31, 2017. Tr. 33, 195.

         Plaintiff's application was denied initially on October 15, 2013, and upon reconsideration on January 15, 2014. Tr. 33, 77-121. On January 20, 2014, Plaintiff requested a hearing. Tr. 33, 122-23. On December 31, 2015, Plaintiff's representative (Andrew S. Youngman, a non-attorney) filed a pre-hearing memorandum. Tr. 268-76. On January 7, 2016, Administrative Law Judge (ALJ) Gregory J. Froehlich, presided over a video hearing from Jacksonville, Florida, and Plaintiff appeared in Gainesville, Florida, represented by L. Lynn Lawrence, an attorney, and appointed co-representative from the same firm. Tr. 33, 49, 51, 113-14, 166-70. (Mr. Youngman, a non-attorney, also represented Plaintiff on post-hearing matters. Tr. 27, 33, 113-14, 166-70, 278-86.) Plaintiff testified during the hearing. Tr. 52-68. Donna P. Mancini, an impartial vocational expert, also testified. Tr. 33, 69-73, 265-67 (Résumé).

         The ALJ provided the vocational expert with a hypothetical set of facts. Tr. 70. Based on those facts, the vocational expert testified that Plaintiff would not be able to perform his past work, classified in the Dictionary of Occupational Titles (DOT) as automobile mechanic, medium exertion with a SVP rating of 6 (skilled) and performed by Plaintiff at the heavy exertional level. Tr. 69-70; see infra at n.2. The vocational expert testified that sedentary work would be available and would include positions such as a document preparer, DOT number 241.587-018, addresser, DOT number 209.587-010, and cutter and paster, DOT number 249.587-014, with each job classified as unskilled with an SVP of 2. Tr. 70-71. Conversely, the vocational expert opined in response to a second hypothetical that Plaintiff would not be able to perform competitive employment if he would be off task 20% during the workday and outside of the normally permitted breaks. Tr. 71. The ALJ asked the vocational expert if there are any conflicts between her testimony and the DOT and she responded:

A The only conflict, Your Honor, is, and it's not really a conflict, is that the DOT does not address the sit/stand option and I can testify to that aspect because I've worked in the field, met with employers, discuss with them those issues, and then the testimony is recalled from those conversations.

Tr. 71. Plaintiff's counsel then inquired of the vocational expert:

Q Okay. What part of the file did you review to determine the -- his job classifications and -- for this position, for these files?
A Okay. I don't have any exhibit number. Is [sic] is the Disability Report, Adult Form, SSA-2368, and specifically the information that's contained on page 4 of 11.[2]
Q Okay. And when you say, for instance, on the document preparer that there is 48, 353 jobs, where are you obtaining that number from?
A Under a program called a Job Browser Pro by SkillTRAN. What SkillTRAN does, it extracts the information from the Department of Labor, Bureau of Labor Statistics in a computer program and identifies DOT numbers with specific numbers of positions in the state and national economy.
Q And the DOT hasn't been updated since, like, 1992; is that correct?
A The DOT -- yes, the information in the update is -- is old. That is correct.
ATTY: Okay. Your Honor, one, I'd like to raise the objection that the way that the numbers are being prepared is unclear and can't -- is being related back into old DOT numbers.[3]
ALJ: Okay. That objection's [sic] overruled. Thank you.

Tr. 72 (emphasis supplied). The vocational expert further testified that the positions of document preparer, cutter and paster, and addresser that require fingering, (occasional and/or frequent), would not be available to such a person, and “with no fingering, those three positions would be eliminated.” Tr. 73. The ALJ left the record open for 15 days to obtain additional medical records. Tr. 73-74.

         On January 26, 2016, Mr. Youngman, representing Plaintiff, filed a lengthy post-hearing memorandum expanding on the objection to the vocational expert's testimony and explaining the bases on which Plaintiff alleged the testimony was unreliable. Tr. 278-332. Mr. Youngman objected to the vocational expert testimony, arguing that it was based on outdated information and should have been based on the Department of Labor's current source for evaluating job requirements found at the United States Department of Labor (USDOL) “O*NET” website rather than on the DOT job descriptions and skill level.[4] Tr. 280-81.

         On March 7, 2016, the ALJ issued a decision and denied Plaintiff's application for benefits, concluding that Plaintiff was not disabled from August 14, 2013, through the date of the decision. Tr. 41. The ALJ did not rule on the post-hearing objections or more specifically explain why the objection raised to the vocational expert's testimony at the hearing was overruled.

         On May 2, 2016, Plaintiff's representative, Mr. Youngman, requested review of the ALJ's decision by the Appeals Council and filed a brief dated May 12, 2016, and Medical Source Statement's (MSS) from Innocent Odocha, M.D., and Brent Stuart, M.D., both dated August 19, 2016. Tr. 2, 5-6, 27-28, 333-38 (Exhibit 22E), [5] 907-09 (Exhibit 31F), 910 (Exhibit 32F). Plaintiff's representative also submitted an MSS from Sarah Bolis, M.D., from UF Health dated November 9, 2016, Tr. 8 (Bolis), 13 (Bolis), 19 (Bolis), and records related to a Workers' Compensation claim dated November 1, 2016, Tr. 10-16.

         On December 7, 2016, the Appeals Council denied Plaintiff's request for review of the ALJ's decision making the ALJ's decision the final decision of the Commissioner. Tr. 1-7; see 20 C.F.R. § 404.981. The Appeals Council noted that it had considered the one-page MSS from Dr. Bolis dated August 19, 2016, and the medical records (10 pages) from UF Health dated November 9, 2016, and stated: “The [ALJ] decided your case through March 7, 2016. This new information is about a later time. Therefore, does not affect the decision about whether you were disabled beginning on or before March 7, 2016.” Tr. 2; see Tr. 5-6.

         On November 10, 2016, Plaintiff, represented by different counsel, filed a Complaint in this Court seeking review of the ALJ's decision. ECF No. 1. The parties filed memoranda of law, ECF Nos. 18 and 19, which have been considered.

         II. Findings of the ALJ

          The ALJ made several findings:

1. “The claimant has not engaged in substantial gainful activity since August 14, 2013, the alleged onset date.” Tr. 35.
2. “The claimant has the following severe impairments: left shoulder osteoarthritis; degenerative disk disease of the cervical and lumbar spine, status post ACDF; coronary artery disease; RSD in the right upper extremity; bilateral median nerve entrapment; anxiety; and depression.” Id. The ALJ determined that Plaintiff's history of TIA and thyroid issues are non-severe. Id.
3. “The claimant does not have an impairment or combination of impairments that meets or medically equals the severity of one of the listed impairments in 20 CFR Part 404, Subpart P, Appendix 1.” Tr. 36. The ALJ also considered the four broad functional areas known as the “paragraph B” criteria and determined that Plaintiff had moderate limitations in activities of daily living; mild limitation in maintaining social functioning; moderate limitations in maintaining concentration, persistence, and/or pace; and no episodes of decompensation, of extended duration. Id.
4. “[T]he claimant has the residual functional capacity [RFC] to perform less than a full range of sedentary work as defined in 20 CFR 404.1567(a) and needs a 30-minute sit/stand option. The claimant can occasionally climb ramps and stairs but never ladders, ropes, or scaffolds. He can occasionally balance but never can kneel, crouch, or crawl. The claimant is precluded from bilateral overhead reaching and cannot handle/finger more than frequently with the right hand. The claimant cannot use his upper extremities for repetitive movements. The claimant cannot work around moving, mechanical parts or at unprotected heights. Additionally, the claimant is limited to performing simple tasks with little variation that take a short period of time to learn (up to and including 30 days). He can tolerate changes in a routine work setting. The claimant is limited to occasional contact with the general public.” Tr. 37.
5. “The claimant is unable to perform any past relevant work” as an automobile mechanic, medium exertion, with an SVP rating of 6. Tr. 40.
6. The Plaintiff was 38 years old, which is defined as a younger individual age 18-44, on the alleged disability onset date. Id. Plaintiff “has at least a high school education and is able to communicate in English.” Id.
7. “Considering the claimant's age, education, work experience, and [RFC], there are jobs that exist in significant numbers in the national economy that the claimant can perform.” Tr. 41. The vocational expert testified that Plaintiff would be able to perform the requirements of representative occupations such as document preparer, addresser, and cutter and paster, each with a sedentary exertion level and an SVP of 2 (unskilled).[6] Tr. 41; see Tr. 70-71.
The vocational expert also testified these positions would be eliminated if a person was unable to have any fine manipulation skills, including fingering. See Tr. 73.
8. “The claimant has not been under a disability, as defined in the Social Security Act, from August 14, 2013, through the date of [the] decision.” Tr. 41.

         III. Legal Standards Guiding Judicial Review

         This Court must determine whether the Commissioner's decision is supported by substantial evidence in the record and premised upon correct legal principles. 42 U.S.C. § 405(g); Chester v. Bowen, 792 F.2d 129, 131 (11th Cir. 1986). “Substantial evidence is more than a scintilla, but less than a preponderance. It is such relevant evidence as a reasonable person would accept as adequate to support a conclusion.” Bloodsworth v. Heckler, 703 F.2d 1233, 1239 (11th Cir. 1983) (citations omitted); accord Moore v. Barnhart, 405 F.3d 1208, 1211 (11th Cir. 2005). “The Commissioner's factual findings are conclusive if supported by substantial evidence.” Wilson v. Barnhart, 284 F.3d 1219, 1221 (11th Cir. 2002) (citations omitted). The Court may not reweigh the evidence or substitute its own judgment for that of the ALJ even if it finds that the evidence preponderates against the ALJ's decision. Moore, 405 F.3d at 1211.[7]

         “In making an initial determination of disability, the examiner must consider four factors: ‘(1) objective medical facts or clinical findings; (2) diagnoses of examining physicians; (3) subjective evidence of pain and disability as testified to by the claimant and corroborated by [other observers, including family members], and (4) the claimant's age, education, and work history.'” Bloodsworth, 703 F.2d at 1240 (citations omitted). A disability is defined as a physical or mental impairment of such severity that the claimant is not only unable to do past relevant work, “but cannot, considering his age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy.” 42 U.S.C. § 423(d)(2)(A). A disability is an “inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months.” 42 U.S.C. § 423(d)(1)(A); 20 C.F.R. § 404.1509 (duration requirement). Both the “impairment” and the “inability” must be expected to last not less than 12 months. Barnhart v. Walton, 535 U.S. 212 (2002). In addition, an individual is entitled to DIB if he is under a disability prior to the expiration of his insured status. See 42 U.S.C. § 423(a)(1)(A); Moore v. Barnhart, 405 F.3d at 1211; Torres v. Sec'y of Health & Human Servs., 845 F.2d 1136, 1137-38 (1 st Cir. 1988); Cruz Rivera v. Sec'y of Health & Human Servs., 818 F.2d 96, 97 (1st Cir. 1986).

         The Commissioner analyzes a claim in five steps, pursuant to 20 C.F.R. § 404.1520(a)(4)(i)-(v):

1. Is the individual currently engaged in substantial gainful activity?
2. Does the individual have any severe impairments?
3. Does the individual have any severe impairments that meet or equal those listed in Appendix 1 of 20 C.F.R. ...

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